Interim Decision #3072 

MATTER OF RIVERA 

In Deportation Proceedings 

A-23456046 

Decided by Board August I, 1988 

(1) The grant or denial of a change of venue motion is within the discretion of the 

immigration judge. 

(2) Denial of the respondent's request to change venue from Puerto Rico, the place 

of his arrest, to New York, the place of his current residence, is upheld where the 

respondent has not shown how he would be prejudiced by holding the deportation 

hearing irk Puerto Rico, and the Immigration and Naturalization Service could be 

prejudiced by changing venue, since the only witnesses to his contested unlawful 

entry were in Puerto Rico. 

CHARGE: 

Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1251(aX2)]—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Jan H. Brown, Esquire Hans Burgos 

Billet, Becker & Brown General Attorney 

37'7 Broadway, 8th Floor 

New York, New York 10013 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated February 24, 1986, an immigration judge, following an in absentia hearing, found the respondent deportable 

under section 241(a)(2) of the Immigration and Nationality Act, 8 

U.S.C. § 1251(a)(2) (1982), as an alien who entered the United States 

without inspection by immigration officers. The respondent was ordered deported to the Dominican Republic. The respondent appealed. The appeal appears to be untimely. However, there is some 

question as to when the respondent received the immigration 

judge's decision. Neither the respondent nor the Immigration and 

Naturalization Service has raised the issue of the timeliness of the 

appeal. Under these circumstances, we have decided to take the 

case on certification under 8 C.F.R. § 3.1(c) (1988)- The request for 

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Interim Decision #3072 

oral argument before the Board is denied and the appeal will be 

dismissed. 

An Order to Show Cause, Notice of Hearing, and Warrant for 

Arrest of Alien (Form I-221S) was issued against the respondent on 

November 1, 1985. The order stated that the respondent's hearing 

would be held in Hato Rey, Puerto Rico, at a time to be set. On 

December 9, 1985, counsel for the respondent sought a change of 

venue from Puerto Rico to New York City. On December 12, 1985, 

the respondent was notified that his deportation hearing would be 

held on February 24, 1986, in San Juan, Puerto Rico. On January 

22, 1986, the immigration judge denied the respondent's request for 

a venue change, stating that venue would not be changed from 

Puerto Rico "until such time as the respondent's deportability is 

settled on this record, relief to be sought is specified and good 

cause for such change of venue is alleged." On February 7, 1986, 

the respondent's counsel sent a motion to reopen and reconsider to 

the immigration judge, again requesting a change of venue, and 

stating why he believed venue should be changed. On February 19, 

1986, the immigration judge denied the motion, noting that it was 

received shortly before the scheduled hearing. The immigration 

judge further stated that the issue of deportability, which was 

being disputed, was best adjudicated where the arrest occurred. 

Neither the respondent nor his counsel appeared for the hearing 

on February 24, 1986. The immigration judge proceeded with the 

hearing in absentia pursuant to section 242(b) of the Act, 8 U.S.C. 

§ 1252(b) (1982). 1The Service submitted a Form 1-213 (Record of 

Deportable Alien) to establish the respondent's deportability. The 

immigration judge found the respondent deportable based on that 

evidence. 

On appeal, counsel for the respondent argues that the denial of a 

venue change was a denial of due process and that the immigration 

judge's refusal to consider his motion to reconsider the denial of 

the change of venue request was an abuse of discretion. He further 

asserts that he did not receive the notice of denial until 1 day prior 

to the scheduled hearing wad he did not then have an adequate opportunity to prepare for the hearing. 

The respondent was properly notified of the time and date of his 

deportation hearing. Having received notice of the hearing, the respondent or his counsel was required to attend, or show reasonable 

Section 242(b) of the Act provides in pertinent part as follows: 

Lt any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend 

or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present. 

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Interim Decision *3072 

cause for the failure to attend. Matter of Patel, 19 I&N Dec. 260 

(BIA 1985), aff'd, Patel v. United States INS, 803 F.2d 804 (5th Cir. 

1986); Matter of Marallag 13 I&N Dec. 775 (BIA 1971). The fact 

that the respondent requested a change of venue did not relieve 

him of his obligation to appear at the hearing, prepared to go forward with the case. Matter of Patel supra. The respondent could 

not merely assume that the motion for a venue change would be 

granted, or would result in a continuance. In this case, moreover, 

the respondent was already aware that the immigration judge was 

not inclined to change venue. Unless the immigration judge grants 

a continuance, for change of venue or other reasons, the alien remains obligated to appear at the appointed date and time. Matter 

of Patel, supra. 

We further find no error in the immigration judge's denial of a 

venue change. The grant or denial of a change of venue motion is 

within the discretion of the immigration judge. The immigration 

judge's decision to hold the hearing on deportability in Puerto Rico, 

where the respondent was arrested, and where the arresting officers would be available to testify, if necessary, was a reasonable 

one. The respondent has not shown. that he was materially prejudiced by holding the hearing on deportability in Puerto Rico rather 

than New York. On the contrary, it appears in this case that there 

could have been prejudice to the Service in holding the hearing in 

New York. The respondent had indicated that he would deny the 

entry without inspection charge. The only witnesses regarding his 

entry were in Puerto Rico, and it would have been a considerable 

burden on the Service to have to transport the witnesses to New 

York. The respondent cites La B-anca v. INS, 413 F.2d 686 (2d Cir. 

1969), for his contention that the hearing should. have been held in 

New York. However, La Franca clearly states that the "better procedure" is generally to place the venue of a case "in the district of 

the alien's residence or place of arrest." Id. at 689 n.9 (emphasis 

added). The respondent also relies on Chlontos v. United States Department of Justice, INS, 516 F.2d 310 (3d Cir. 1975). There, the 

court stated in a footnote that a hearing in New Jersey, the place 

of the respondent's permanent residence, rather than in Florida, 

where he was arrested, "would be appropriate." Id. at 312 n.4. 

However, in Chlomos, there was no countervailing Government interest in holding the hearing in Florida. Here, where witnesses as 

to the disputed unlawful entry are in Puerto Rico, there clearly is. 

We see no reason to disturb the immigration judge's venue ruling 

in this case. 

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The respondent has not contested his deportability on appeal. 

Having concluded that the immigration judge's handling of this 

case was reasonable, we find that the appeal should be dismissed. 

ORDER: The appeal is dismissed. 

aei